CONSENT – A GROUND OF DEFENCE

INTRODUCTION

Consent implies a state of mind where a person, either orally or in writing, agrees to involve in an act. It should be communicated freely between the parties to avoid any uncertainties in future. When we talk about the laws, consent plays a key role in them. When the concerned party is presumed to be guilty, consent acts as a defence to prove his innocence. Whether the consent is implied or expressed, its importance is significant as no one can force others to involve in acts without their prior approval. That is why consent is a ground of defence in the Law of Torts, Indian Penal Code, and more.

GROUND OF DEFENCE IN TORTS

Under the law of torts, there are eight general defences in which consent is the foremost. The maxim ‘volenti non fit injuria’ explains that when the plaintiff has given his willful consent for the acts of the defendant, the defendant would not be liable in the future. The defence, to be invoked, needs to satisfy the following points:

  • The plaintiff knew about the gravity of the harm.
  • The plaintiff, knowing the same, agreed to suffer the injury.

In simple words, the person who has committed tort can be excused from his tortious liability if the plaintiff has consented for the same.

In Hall v. Brooklands Auto Racing Club[1], the plaintiff was a spectator of a race held by the Brooklands Auto Racing Club. During the race, the cars suffered a collision against each other and, one of them was thrown among the spectators. The plaintiff did sustain injuries but could not hold the racing club liable. The reason was that the plaintiff voluntarily agreed to be a part of the race and took the risk of the injury. As the danger was an inherent part of the race, the defendant could not be held liable.

GROUND OF DEFENCE UNDER IPC

Consent plays a significant role against the accused of sexual crimes. There had been instances where a person presumed to be guilty of any sexual offence has invoked the defence of consent to his innocence. Under section 90 of the IPC, consent is not such a consent as it intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of an insane person. Consent is likely to be invoked in cases of false rape offences so that the innocent can be saved. According to section 375, a person who forcefully tries to have sexual intercourse with a woman without her consent is said to have committed rape. Consent for sexual intercourse can be considered rape under the following circumstances:

  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
  4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
  5. With her consent, when, at the time of giving such consent, because of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
  6. With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

The definition of the term ‘rape’ was amended through the Criminal Law Act 2013 and included acts of mere touching which can amount to sexual assault under the Act. But, there are instances where there was valid consent for sexual intercourse but, the man was held to have committed rape. Here, the defence of consent proved that the woman voluntarily agreed to indulge in the act rather than under coercion. This concludes the fact that mere proving of the consent on the part of the victim can acquit someone of his or her criminal liability.

Under sections 87 to 89[2], the conditions of consent have been laid down. The mere defence of consent may be used to acquit a murderer on the ground that he carried out the act in good faith. Section 87 states that consent when given by a person above the age of 18 years for all the acts being done against him, will discharge the actor from criminal liability. Suppose, a person agreed to undergo plastic surgery on his face and later on due to some accident, his face disfigured. Here, the surgeon will not be liable as he consented for the same. But, consent cannot be used as a defence in the case of sado-masochistic practices as those are the acts which devalue the dignity of an individual.

Section 88 lays down the immunity to doctors against the surgical operations where the patient actively consented to it. To avail the defence of consent, the doctor must prove his innocence by establishing the idea of good faith for the benefit of the person. If the surgeon has acted negligently due to which the patient had suffered any grievous hurt then he cannot invoke this defence. Section 89 is a corollary of section 88 and authorizes the guardian of a child below 12 years of age or a person with an unsound mind to give consent on their behalf. This acts as a defence when a person is held guilty for causing any harm but done in good faith. Any act done for the benefit of the minor will not amount to any immorality or illegality in the eyes of law.

Section 90 of the Indian Penal Code discusses the different offences under the sections which can exempt a person from criminal liability. The three cases where consent can be used as a defence are as follows:[3]

  1. The case where consent is to be proved by the accused, as a defence to criminal liability (sections 87, 88 and 89);
  2. In the case, the prosecution has to prove that the act committed by the accused was without the consent of the victim (sections 350, 375, 378, 359-362). The basis of the offence is the lack of consent so if the consent is proved from the victim’s side then the accused will not be liable);  
  3. In a case where the term ‘consent has not been expressed instead of terms like ‘entrusted’ and ‘delivery’ have been used, it will be treated as consent. If the consent can be proved then it will exempt the accused from the charge.

CONCLUSION

While summarizing the above facts, we can formulate the notion that consent can be a life saviour at many times. Persons accused of grave criminal offences can be discharged from their charge through the defence of consent. Being of such importance, people misuse the defence due to which the innocent have to face criminal trials. Mostly, the defence finds its utility in sex crimes or instances where the woman has falsely accused a man of rape. In that case, the prosecution must scrutinize all the pieces of evidence and establish the ‘consent of the victim’. Only at that time, the person can be proved innocent. Consent is a defence that can be deemed both a boon and bane, depending on the person utilizing it.

Author(s) Name: Mukulita Datta (S.K.Acharya Institute of Law, Kalyani)

References:

[1]    Hall v. Brooklands Auto Racing Club, (1933) 1 KB 205

[2] K D GAUR, TEXTBOOK ON INDIAN PENAL CODE 271-279 (LexisNexis 2020)

[3] K D GAUR, TEXTBOOK ON INDIAN PENAL CODE 281 (LexisNexis 2020)

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